Citation Nr: 0800213
Decision Date: 01/03/08 Archive Date: 01/22/08
DOCKET NO. 98-12 703 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee
THE ISSUE
Entitlement to service connection for a left inguinal hernia.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
P. Sorisio, Associate Counsel
INTRODUCTION
The veteran served on active duty from May 1977 to May 1995,
until his retirement.
This matter is before the Board of Veterans' Appeals (Board)
on appeal from July 1997 rating decision by the Department of
Veterans Affairs (VA) Regional Office (RO) in Nashville,
Tennessee.
In July 2004, a Travel Board hearing was held before the
undersigned Veterans Law Judge and a transcript of that
hearing is of record. This matter was previously before the
Board in November 2004 and was remanded for further
development. It has now returned to the Board for further
appellate consideration.
FINDING OF FACT
The competent clinical evidence of record does not establish
that the veteran's current left inguinal hernia disability is
related to active service.
CONCLUSION OF LAW
A left inguinal hernia disability was not incurred in or
aggravated by active service. 38 U.S.C.A. §§ 1101, 1110,
1131, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303
(2007).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007).
Duty to Notify
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a)
(West 2002 & Supp. 2006); 38 C.F.R. § 3.159(b) (2007);
Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA
notice must inform the claimant of any information and
evidence not of record (1) that is necessary to substantiate
the claim; (2) that VA will seek to provide; (3) that the
claimant is expected to provide; and (4) must ask the
claimant to provide any evidence in her or his possession
that pertains to the claim in accordance with 38 C.F.R.
§ 3.159(b)(1). VCAA notice should be provided to a claimant
before the initial unfavorable agency of original
jurisdiction (AOJ) decision on a claim. Pelegrini v.
Principi, 18 Vet. App. 112 (2004).
In March 2006, the United States Court of Appeals for
Veterans Claims (Court) issued its decision in the
consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet.
App. 473 (2006). The Court in Dingess/Hartman held that the
VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R.
§ 3.159(b) apply to all five elements of a "service
connection" claim. As previously defined by the courts,
those five elements include: (1) veteran status; (2)
existence of a disability; (3) a connection between the
veteran's service and the disability; (4) degree of
disability; and (5) effective date of the disability. Upon
receipt of an application for "service connection,"
therefore, VA is required to review the information and the
evidence presented with the claim and to provide the claimant
with notice of what information and evidence not previously
provided, if any, will assist in substantiating or is
necessary to substantiate the elements of the claim as
reasonably contemplated by the application. This includes
notice that a disability rating and an effective date for the
award of benefits will be assigned if service connection is
awarded.
VA satisfied its duty to notify as to the claim by means of
August 1996, April 2001, and February 2004 letters from the
RO to the appellant. These letters informed him of what
evidence was required to substantiate the claim and of his
and VA's respective duties for obtaining evidence. The
veteran was also asked to submit pertinent evidence and/or
information in his possession to the AOJ. Additionally, an
October 2006 letter informed the veteran as to the law
pertaining to the assignment of a disability rating and
effective date as the Court required in Dingess/Hartman.
Regarding the timing of notice, in Pelegrini v. Principi, 18
Vet. App. 112 (2004), the Court held, in part, that a VCAA
notice, as required by 38 U.S.C.A. § 5103(a), must be
provided to a claimant before the initial unfavorable AOJ
decision on a claim for VA benefits. In the present case,
the unfavorable AOJ decision that is the basis of this appeal
was already decided and appealed prior to the enactment of
the current section 5103(a) requirements in November 2000.
The Court acknowledged in Pelegrini that where, as here, the
§ 5103(a) notice was not mandated at the time of the initial
AOJ decision, the AOJ did not err in not providing such
notice. Rather, the appellant has the right to content
complying notice and proper subsequent VA process.
Pelegrini, 18 Vet. App. at 120.
Duty to assist
With regard to the duty to assist, the claims file contains
the veteran's available service medical records and reports
of post-service VA treatment and examination. Additionally,
the claims file contains the veteran's statements in support
of his claim, to include testimony at a Travel Board hearing.
The Board has carefully reviewed his statements and testimony
and concludes that there has been no identification of
further available evidence not already of record. The Board
has also perused the medical records for references to
additional treatment reports not of record, but has found
nothing to suggest that there is any outstanding evidence
with respect to the veteran's claim. The Board notes that a
VA medical opinion has been obtained and sufficient competent
medical evidence is of record to make a decision on this
claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006).
In remanding this matter in November 2004, the Board noted
that a substantial portion of the veteran's service medical
records (those dated prior to the 1990's) are not included in
the claims file. The Board found that an attempt to obtain
these records must be made prior to deciding the veteran's
claim. Subsequent to the November 2004 Board remand, the
Appeals Management Center (AMC) sent the veteran a letter,
dated in February 2005, informing the veteran that additional
information, to include the veteran's service medical records
prior to the 1990s and a VA examination thereafter, was
needed prior to making a decision on his claim. The veteran
responded to the February 2005 letter from the AMC and noted
that he did not seek treatment when he felt inguinal hernia
pain in service. The record also contains an e-mail, dated
in February 2005, reporting that several searches of a VA
facility were done and that the requested service medical
records were not located. The Board further notes a request
and response regarding the veteran's service medical records,
in March 2005, that note a micro fiche was found that
contained a few medical documents on it which were printed
and mailed. The documents on the micro fiche included the
veteran's May 1977 report of medical examination and a May
1977 report of medical history. Finally, the Board notes
that a June 2006 response to a request for the veteran's
service medical records noted "DPRIS is negative for images
for this veteran." Based on the foregoing, the Board finds
that a remand for further development is not necessary as
sufficient efforts have been made to obtain the veteran's
missing service medical records. See Soyini v. Derwinski, 1
Vet. App. 540, 546 (1991) (finding that further development
would serve no useful purpose and would result in
unnecessarily imposing additional burdens on VA with no
benefit flowing to the veteran).
The Board finds that all relevant facts have been properly
and sufficiently developed in this appeal and no further
development is required to comply with the duty to assist the
veteran in developing the facts pertinent to his claim.
Essentially, all available evidence that could substantiate
the claim has been obtained.
Legal criteria and analysis
According to the law, service connection is warranted if it
is shown that a veteran has a disability resulting from an
injury incurred or a disease contracted in active service or
for aggravation of a pre-existing injury or disease in active
military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38
C.F.R. § 3.303 (2007). Service connection may also be
granted for any disease diagnosed after discharge when all of
the evidence establishes that the disease was incurred in
service. See 38 C.F.R. § 3.303(d).
"Generally, to prove service connection, a claimant must
submit (1) medical evidence of a current disability, (2)
medical evidence, or in certain circumstances lay testimony,
of in-service incurrence or aggravation of an injury or
disease, and (3) medical evidence of a nexus between the
current disability and the in-service disease or injury."
Pond v. West, 12 Vet. App. 341, 346 (1999). Where the
determinative issue involves a medical diagnosis, competent
medical evidence is required. This burden typically cannot
be met by lay testimony because lay persons are not competent
to offer medical causation opinions. Espiritu v. Derwinski,
2 Vet.
App. 492, 494-95 (1992).
The veteran seeks entitlement to service connection for a
left inguinal hernia. He maintains that he did a lot of
heavy lifting during service and that he began feeling pain
in his left inguinal area during service.
The first question for consideration in evaluating a service
connection claim is whether the competent evidence
demonstrates a current disability. In the present case, a VA
examiner in July 2006 diagnosed the veteran with left
inguinal hernia, October/November 1995 status post hernia
repair with placement of mesh. The VA examiner noted that
the disability affects his occupational activities and has a
varying effect on his activities of daily living. Based on
this evidence, the Board finds a current disability and the
first element of a service connection claim is therefore
satisfied.
With respect to an in-service incurrence, the veteran's
clinical enlistment examination in May 1977 showed that the
veteran's abdomen and viscera (including hernia) were normal.
At that time, the veteran did not report a hernia. See May
1977 report of medical history. The veteran's available
service medical records, most from the 1990s, do not reflect
any complaints or findings related to a hernia. In fact, the
veteran stated during the appeal process that there was no
record of complaint in service and that he did not seek
treatment in service for any symptoms related to his left
inguinal hernia. See February 2005 statement in support of
his claim. Nonetheless, the veteran testified that he
remembered feeling a twinge (in the left groin) while moving
furniture in service. (See Transcript "T." at 18.) He
also testified that while moving dormitories on special
detail in service he felt a tug when lifting a couch. Id.
The Board finds the veteran's statements regarding his
reports of experiencing pain in the left groin area during
service to be credible. See Washington v. Nicholson, 19
Vet. App. 362, 368 (2005). Upon clinical evaluation in
February 1994, his retirement/separation examination from
service, it was noted that the veteran's abdomen and viscera
(including hernia) were normal. The veteran did not report
any problems regarding a hernia on a February 1994 report of
medical history.
Following service, the record reflects the veteran was seen
for a VA general examination in August 1995. The VA examiner
did not provide a diagnosis concerning a hernia or a
disability comparable therewith. Upon physical examination,
a hernia was not found. A VA consultation record from
October 1995 shows that the veteran was seen for left lower
quadrant pain. A possible diagnosis was left inguinal
hernia. Compare October 1995 VA medical certificate (finding
no hernia). Despite the October 1995 medical certificate,
the veteran was later diagnosed with a left inguinal hernia,
was scheduled for surgery, and had surgery on his left
inguinal hernia. See November 1995 VA operation report and
discharge summary.
The veteran was afforded a VA examination in July 2006 to
determine the nature and etiology of his left inguinal
hernia. After reviewing the claim folder and medical records
and performing an examination, the VA examiner opined that
the veteran's left inguinal hernia was not caused by or a
result of his military service. The examiner noted, "Per
Mayolinic.com 'Some hernias have no apparent cause. But many
occur as a result of increased pressure within the abdomen, a
pre-existing weak spot in the abdominal wall or a combination
of the two.'" The examiner further noted that evidence
showing no documentation in the service medical records of
any complaint/problem related to his left groin prior to
separating from the military was pertinent in formulating his
opinion. The Board places a high probative value on the July
2006 VA examination report because the claims folder was
reviewed and a detailed supporting rationale was provided.
Moreover, there is no competent clinical evidence of record
linking the veteran's left inguinal hernia disability to
service. Based on the foregoing, the Board finds that
service connection is not warranted for the claimed
disability.
The veteran has expressed a belief, including in a February
2005 statement in support of his claim, that his left
inguinal hernia disability is causally related to his
service. The Board notes that the veteran and other persons
can attest to factual matters of which they had first-hand
knowledge, e.g., experiencing pain in service and witnessing
events. Washington, 19 Vet. App. at 368. In this regard,
the Board again notes that it accepts the veteran's
statements regarding him feeling pain after lifting heavy
furniture while on active duty to be credible. However, the
veteran has not been shown to possess the requisite skills
necessary to be capable of making medical conclusions. Thus,
his statements concerning the etiology of his left inguinal
hernia do not constitute competent medical evidence and lack
probative value. Espiritu v. Derwinski, 2 Vet. App. 492,
494-95 (1992).
In conclusion, the probative, competent clinical evidence of
record does not show a nexus between a current left inguinal
hernia disability and the veteran's military service. As the
preponderance of the evidence is against the claim, the
benefit of the doubt rule is not applicable. See 38 U.S.C.A.
§ 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56
(1990).
ORDER
Entitlement to service connection for a left inguinal hernia
disability is denied.
____________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs